Regulatory Counter-Terrorism explores an emerging terrain in which the global governance of terrorism is expanding. This terrain is that of proactive regulatory governance – the management of the day-to-day activities of individuals and entities in order to pre-emptively minimize vulnerability to terrorism. Overshadowed by the more publicized dimensions of military and criminal justice responses to terrorism, regulatory counter-terrorism has grown in size and impact without stirring up as much academic debate.

Through a critical assessment of international regulatory counter-terrorism in three areas – financial services, the control of arms and dangerous materials, and the cross-border movement of persons and goods – this volume identifies a dynamic trend. This is the refashioning of international rule making into a flexible and experimental exercise. This volume shows how this transformation is affecting societies across the world in new ways and in the process unravelling settled understandings of international law. Furthermore, through an in-depth analysis of the working processes of UN counter-terrorism bodies and the Financial Action Task Force, this book illustrates that the monitoring of the global counter-terrorism regime is, contrary to accepted understanding, in the main collaborative and managerial, and coercive only peripherally. Dynamic rule making and soft monitoring complement each other, but this is a reason for concern: the softening of international monitoring encourages regulatory adventurism by states in tackling terrorism, while the element of self-correction in dynamic rule making helps silence the calls for institutionalized mechanisms of accountability.

Armed conflicts, terrorist attacks or natural disasters often prompt governments to declare a state of emergency. While sometimes the proclamation of a public emergency is necessary (or at least justifiable), such moves can also mask repressive government policies, threatening individual and collective rights. Recent developments in Turkey would seem to be a case in point. To curb this threat, international law regulates States’ derogation from their human rights obligations through a two-stepped test: 1) Is the situation sufficiently serious to warrant a state of emergency? 2) If the answer is affirmative, are the exceptional measures adopted really necessary to address (or to contain) the emergency?
This book offers a comprehensive overview on how derogation clauses have been interpreted by treaty monitoring bodies that were asked to apply the above test. Differences and similarities in the interpretative work of European, Inter-American and UN bodies are highlighted, and explanations for divergences in their approach are explored. A second part of the book considers the legal nature of derogation clauses under general international law, contrasting them with the norms precluding the wrongfulness of State conduct, and the rules concerning the termination or suspension of treaties. The existence of customary law principles regarding the suspension of human rights is also examined. Last, the book provides some recommendations aimed at making the work of treaty monitoring bodies more effective when dealing with genuine or alleged emergencies.

This book examines the rules and mechanisms of international law relevant to the suppression of state organized crime, and provides a normative justification for developing international legal mechanisms specifically designed to address this phenomenon.

State organized crime refers to the use by senior state officials of the resources of the state to facilitate or participate in organized crime, in pursuit of policy objectives or personal profit. This concept covers diverse forms of government misconduct, including strategic partnerships with drug traffickers, the plundering of a country's resources by kleptocrats, and high-level corruption schemes.

The book identifies the distinctive criminological characteristics of state organized crime, and analyses the applicability, potential, and limits of the norms and mechanisms of international law relevant to the suppression of state organized crime. In particular, it discusses whether the involvement of state organs or agents in organized crime may amount to an internationally wrongful act giving rise to the international responsibility of the state, and highlights a number of practical and normative shortcomings of the legal framework established by relevant crime-suppression conventions.

The book also sketches proposals to develop an international legal framework designed to hold perpetrators of state organized crime accountable. It presents a normative justification for criminalizing and suppressing state organized crime at the international level, proposes draft provisions for an international convention for the suppression of state organized crime, and discusses the potential role of the UN Security Council and of international criminal courts and tribunals, respectively, in holding perpetrators accountable.

The American Society of International Law has issued a call for session proposals for its 113th Annual Meeting, which will take place March 27-30, 2019, in Washington, DC. The conference theme is: "International Law as an Instrument." Here's the call:

International Law as an Instrument

Actors on the international stage use a variety of tools to address their concerns, from climate change to economic development; from humanitarian crises to cross-border disputes; from commercial regulation to global trade. Governments and international organizations employ diplomacy and coercion, corporations use negotiation and persuasion, and non-governmental organizations engage in fact-finding and advocacy. And all of these actors affect and are affected by international law and use the international legal system to effectuate change and solve problems.

The 2019 Annual Meeting of the American Society of International Law (ASIL) will focus on the distinctive ways international law serves as an instrument that national and international actors invoke and deploy, and by which they are constrained. How does international law shape the perceptions of the interests and problems of diverse global actors and help frame solutions? Is international legal language a useful medium for the development and dissemination of globalized norms? Under what conditions is international law most effective? Are international institutions effective instruments for addressing complex global challenges?

At the 2019 Annual Meeting, ASIL invites international lawyers from all sectors of the profession, policymakers, and experts from other fields to reflect on the different ways in which international law plays a role in identifying and resolving global problems.

Thematic Tracks:

Criminal Law, Human Rights, Migration

Dispute Resolution

Foreign Relations and National Security Law

Global Commons

International Business

International Peace and Security

Call for Session Proposals

To suggest a session to the Committee, please complete the form below by no later than July 16, 2018.

The international law on the use of force is one of the oldest branches of international law. It is an area twinned with the emergence of international law as a concept in itself, and which sees law and politics collide.
The number of armed conflicts is equal only to the number of methodological approaches used to describe them.

Many violent encounters are well known. The Kosovo Crisis in 1999 and the US-led invasion of Iraq in 2003 spring easily to the minds of most scholars and academics, and gain extensive coverage in this text. Other conflicts, including the Belgian operation in Stanleyville, and the Ethiopian Intervention in Somalia, are often overlooked to our peril. Ruys and Corten's expert-written text compares over sixty different instances of the use of cross border force since the adoption of the UN Charter in 1945, from all out warfare to hostile encounters between individual units, targeted killings, and hostage rescue operations, to ask a complex question. How much authority does the power of precedent really have in the law of the use of force?

The application of the right to life during armed conflict is an issue that polarizes opinion and generates considerable debate. Many believe that human rights law has no place in armed conflict, yet the European Court of Human Rights, and domestic courts, have ruled that it can apply. The exact contours of how the right to life applies during armed conflict remain largely unresolved. In this text, Ian Park seeks to clearly articulate the right to life obligations of states during both international and non-international armed conflict in respect of those individuals affected by the actions of states' armed forces and members of the armed forces themselves.

In determining the right to life obligations of states, Park identifies the sources of law from which right to life obligations arise, how case law has developed and modified these obligations, and analyses how the law creates obligations in practice. Implicit in this analysis is a consideration of recent armed conflicts, and the actions of states, that lead to a series of concrete proposals designed to best ensure compliance with a state's right to life obligations.

This article examines the methods and mechanics, the scope and the limitations, of France’s efforts to protect its investors abroad during the post-colonial period. The article tells the story of the Republic of Congo’s nationalization in 1970 of the Société industrielle et agricole du Niari (SIAN). At the time of independence, the company, controlled by the powerful Vilgrain family, was the Congo’s largest private employer. The SIAN episode provides fertile ground for exploring the theme of post-colonial entanglements from a political-economic perspective. It especially illustrates how those entanglements provided both obstacles to and opportunities for neo-imperial influence, just as they provided obstacles to and opportunities for acts of authentic sovereign independence. The article suggests that France’s, the Congo’s, and the Vilgrain family’s mutual interdependence served to insulate the effects of the SIAN nationalization on the larger Franco-Congolese relationship while also providing, eventually, a certain measure of compensation for the despoiled investor.

In this paper we aim to explain World Trade Organization (WTO) members’ decision to initiate a dispute at the WTO. Since many potential violations of WTO law remain unchallenged, we explore the conditions under which WTO members complain about only some allegedly WTO-incompatible policies, while leaving a large majority of them unchallenged. While there may be different reasons why governments choose to initiate certain disputes, we are especially interested in the relationship between potential and actual trade disputes on the one hand and the degree of integration into so-called global value chains (GVCs) on the other. We demonstrate that decision-makers are more likely to try and eliminate barriers to cross-border trade by tabling WTO complaints when facing pressures to do so by firms and sectors highly integrated into such GVCs. Potential complainants’ policymakers act strategically when considering whether to initiate a formal dispute. Responding to demands of firms and sectors that are highly integrated in GVCs allows complainants’ policymakers to secure the support of politically powerful domestic constituencies while simultaneously minimizing the administrative burdens and the potential negative externalities for bilateral diplomatic relations that a WTO dispute can bring about. We test our hypothesis by examining data from the US using a binomial logistic regression and Cox proportional hazard model and find that trade barriers are both more likely to be filed as disputes and quicker in being tabled at the WTO in sectors highly integrated into GVCs, while controlling for other factors.

Tuesday, May 15, 2018

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic scope of federal statutes have created a space for commercial actors to circumvent regulation by incorporating in offshore jurisdictions. Under this jurisprudence, financial transactions completed through offshore commercial entities are often, albeit not categorically, seen as “extraterritorial” transactions beyond the reach of federal statutes. This makes it increasingly difficult for private litigants to bring statutory claims designed to protect the workings of the market, even in cases that are predominantly connected to the United States. After documenting how offshore jurisdictions enable commercial entities to opt out of federal regulatory statutes, this Article critiques the Supreme Court’s recent extraterritoriality jurisprudence that risks breeding a cottage industry of private regulatory evasion.

The International Law Reporter is a free service but that doesn't mean there aren't costs associated with its production. On this Eleventh Anniversary of the ILR blog, please show your support by making a donation to help defray the costs associated with its production. Those able and so inclined can donate to support the blog by clicking on the "Donate" button to the right. Any amount is appreciated. Thanks.

From home mortgages to i-phones, basic elements of our daily lives depend on international economic markets. The astonishing complexity of these exchanges may seem ungoverned.

Yet the global economy remains deeply bound by rules. Far from the staid world of treaties and state-to-state diplomacy, economic governance increasingly relies on a different class of international market regulation - soft law - comprised of voluntary standards, best practices, and recommended guidance created by a motley assortment of international organizations.

Voluntary Disruptions argues that international soft law is deeply political, shaping the winners and losers of globalization. Some observers focus on soft law's potential to solve problems and coordinate market participants. Voluntary Disruptions widens the discussion, shifting attention to the ways soft law provides new political resources to some groups while not to others and alters the sites of contestation and the actors who participate in them. Highlighting two mechanisms - legitimacy claims and arena expansion - the book explains how soft law, typically viewed as limited by its voluntary nature, disrupts and transforms the politics of economic governance.

Using financial regulation as its laboratory, Voluntary Disruptions explains the remarkable pre-crisis alignment of US and European approaches to governing markets, the rise and prominence of transnational industry associations in the 1990s and 2000s, and the ambivalence of US reforms towards international market cooperation in the wake of the 2008 financial crisis. Rethinking scholarly and policy approaches to international soft law, this volume answers enduring and pressing questions about global finance, International Relations, and power.

Lorenzo Gasbarri (Univ. College London - Law) has posted The International Responsibility of the OSCE (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:

This paper contributes to the research project on the OSCE Legal Framework led by the Max Planck Institute for Comparative Public Law and International Law. It deals with the OSCE’s international responsibility by distinguishing three different but correlated phenomena: (1) its capacity to develop a legal system; (2) its possession of legal personality, whether international or domestic, does not compromise the existence of the institution as such; and (3) how its international responsibility is dependent upon the fact that the OSCE is either considered as founded by an instrument of international law or by an act of creation not based on international law. The introduction sets the scene describing the work of the International Law Commission. Section 2 further discusses the interaction between legal personality and the development of an ‘original’ or ‘derivative’ legal system. Section 3 then discusses four possibilities: (1) the OSCE possesses a derivative legal system and does not have international legal personality; (2) the OSCE possesses a derivative legal system and does have international legal personality; (3) the OSCE possesses an original legal system and does not have international legal personality; and (4) the OSCE possesses an original legal system and does have international legal personality. This paper does not define once and for all what the OSCE is and how its legal responsibility is to be assessed, but instead discusses the potential consequences that different legal constructions would have on its responsibility.The paper contributes to the law of international organizations analyzing how their international responsibility is affected by the adoption of one or another concept of legal system.

This book offers a major new theory of global governance, explaining both its rise and what many see as its current crisis. The author suggests that world politics is now embedded in a normative and institutional structure dominated by hierarchies and power inequalities and therefore inherently creates contestation, resistance, and distributional struggles. Within an ambitious and systematic new conceptual framework, the theory makes four key contributions. Firstly, it reconstructs global governance as a political system which builds on normative principles and reflexive authorities. Second, it identifies the central legitimation problems of the global governance system with a constitutionalist setting in mind. Third, it explains the rise of state and societal contestation by identifying key endogenous dynamics and probing the causal mechanisms that produced them. Finally, it identifies the conditions under which struggles in the global governance system lead to decline or deepening.

A call for papers has been issued for a conference on "The ICC Statute Reaches 20: Critical and Interdisciplinary Approaches/Le Statut de la CPI a 20 ans : Approches critiques et interdisciplinaires," to take place December 3-4, 2018, at the Université libre de Bruxelles. The call is here (English/Français).

This week marks the International Law Reporter's eleventh anniversary. I'm very pleased that the blog has been embraced by so many people and has become such an important means for the dissemination of information concerning scholarship, events, and ideas related to international law. If you would like to join the more than 7000 people who now follow ILR daily through various electronic services, you can sign up for the rss feed, become a twitter follower, or subscribe to the daily email updates. Please continue to contact me with announcements of events, conference and workshop programs, calls for papers/submissions, job openings, and current and forthcoming publications (in all languages).

The International Law Reporter is a free service but that doesn't mean there aren't costs associated with its production. Those able and so inclined can donate to support the blog by clicking on the "Donate" button to the right. Your contributions are greatly appreciated. Thanks.